The Malleability of “the Law”

Steven Cromack

Are Supreme Court decisions important? Most intellectuals, lawyers, teachers, professors, and anyone with an eighth grade education would exasperatedly answer, “Of course! What a stupid question.” The Supreme Court hands down “The Law of the Land.” In Dred Scott v. Sanford (1857), the Supreme Court fueled the tension between North and South over the fugitive slave law. The decision Minor v. Happersett (1875) posited that women are citizens, but citizenship does not mean suffrage. Brown vs. the Board of Education (1954) declared segregation in American public schools unconstitutional. Finally, Citizens United vs. Federal Election Commission (2010) opened the floodgates for political contributions and significantly changed the nature of American politics. These cases have an important impact on our society—increasing tension (and even war) between the branches, parties, regions, and social classes—or, have they?

The fundamental question lurking below the surface is: Are these decisions truly that significant in themselves, or is their significance historically constructed? In other words, are Supreme Court decisions an end in themselves, or are they a means to an end crafted not by the Court, but by historians, lawyers, academics, or historical figures seeking to advance their own agendas? In studying the “history” of such decisions, and how intellectuals and public figures use them for their own purposes, one arrives at the uncomfortable notion that the law is malleable for those who choose to pursue a political agenda.

2003 was the bicentennial of Marbury v. Madison (1803), the fundamental Supreme Court case that set in motion “judicial review” and established the legitimacy of the Court. Or so Constitutional Scholars tell us. In an article titled “The Rhetorical Uses of Marbury v. Madison: The Emergence of a ‘Great Case,’” the Dean of William and Mary and Professor of Law, Davison Davis tracked the evolution of the decision and pointed out that “between 1803 and 1887, the Court never once cited Marbury for the proposition of judicial review (376).” How is it that such a “landmark case” was not mentioned or invoked by the nineteenth-century Court?

Davis contended that when the Court struck down the income tax as unconstitutional in Pollock v. Farmer’s Loan & Trust Co. (1895), only then did defenders of the Court’s decision make Marbury relevant. Davis wrote, “In the struggle to defend the Court’s actions, judicial review enthusiasts elevated the Marbury decision—and Chief Justice Marshall—to icon status to fend off attacks that the Court had acted in an unwarranted fashion (377).” Davis then goes on to outline how politicians, populists, and other figures trashed the Court’s decision, and also how the Warren Court used Marbury as a shield against segregationists and as a sword to assert its power (409). Thus, the Marbury decision was not an end in itself, but a means to end.

It is common knowledge that the Plessy v. Ferguson (1896) decision espoused the “separate, but equal” doctrine. American history textbooks, law books, and historians overwhelmingly cite it as a landmark decision. On May 19, 1896, the day following the decision, The New York Times, the nation’s leading paper, reported of this monumental case, “No. 210 Homer Adolph Plessy vs. J.H. Ferguson, Judge & c- In error to the Supreme Court of Louisiana. Judgment affirmed, with costs.” For those living at the time, the Plessy decision was not that important. The South did not use the Court’s decision to implement Jim Crow. Nor did the decision legalize the Jim Crow laws. Jim Crow came long before the 1896 decision. The New York Times did not mention the case again until the 1950s, when Brown v. the Board of Education (1954) was making its way through the courts.

If one examines the history and evolution of a Supreme Court decision, one finds that decisions in themselves are not ends, but instead, a means to an end for others not on the Court. This is evident in examining the context of our major court cases and tracking their usage across time. Historians, from generation to generation, construct, tear down, and then reconstruct a narrative. While “deconstruction” has had its moment in the sun, it nevertheless has some validity for history: the narrative changes from generation to generation with those who interpret the past. If history is malleable, then the law is malleable, and that is a scary concept.